141 F.3d 699 (7th Cir. 1998), 97-2792, Barnett v. City of Chicago

Docket Nº:97-2792, 97-2793.
Citation:141 F.3d 699
Party Name:Richard BARNETT, personally and as class representative, and Mary Bonilla, personally and as class representative, Plaintiffs-Appellants, v. CITY OF CHICAGO, et al., Defendants-Appellees, and Carole Bialczak, et al., Intervening Defendants-Appellees.
Case Date:April 01, 1998
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 699

141 F.3d 699 (7th Cir. 1998)

Richard BARNETT, personally and as class representative, and

Mary Bonilla, personally and as class

representative, Plaintiffs-Appellants,

v.

CITY OF CHICAGO, et al., Defendants-Appellees,

and

Carole Bialczak, et al., Intervening Defendants-Appellees.

Nos. 97-2792, 97-2793.

United States Court of Appeals, Seventh Circuit

April 1, 1998

Argued Feb. 18, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied May 6, 1998. *

Page 700

Judson H. Miner (argued), Jeffrey I. Cummings, Miner, Barnhill & Galland, R. Eugene Pincham, P. Scott Neville, Jr., Howse, Howse, Neville & Gray, Jonathan A. Rothstein, Gessler, Hughes & Socol, Chicago, IL, Jaqueline A. Berrien, NAACP Legal Defense and Education Fund, New York City, for Plaintiffs-Appellants in No. 97-2792.

Bridget Arimond, Maria G. Valdez (argued), Mexican American Legal Defense, Chicago, IL, for Plaintiffs-Appellants in No. 97-2793.

James M. Scanlon, Rieff & Scanlon, for Board of Election Commissioners of the City of Chicago in No. 97-2792.

James M. Scanlon, Rieff & Scanlon, Chicago, IL, for Michael J. Hamblet in No. 97-2793.

Kelly R. Welsh, Office of the Corporation Counsel, Lawrence Rosenthal, Benna R. Solomon (argued), Andrew S. Mine, Julian Henriques, Susan S. Sher, Patricia T. Bergeson,

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Office of the Corporation Counsel, Appeals Division, Chicago, IL, for City of Chicago in No. 97-2792.

Lawrence Rosenthal, Benna R. Solomon (argued), Andrew S. Mine, Julian Henriques, Susan S. Sher, Patricia T. Bergeson, Office of the Corporation Counsel, Appeals Division, Chicago, IL, for City of Chicago and Board of Election Commissioners of the City of Chicago in No. 97-2793.

Kelly R. Welsh, Office of the Corporation Counsel, Andrew S. Mine, Susan S. Sher, for Richard M. Daley in No. 97-2792.

Jerold S. Solovy, Joel T. Pelz (argued), Jenner & Block, Chicago, IL, Donald Hubert, Donald Hubert & Assocs., Chicago, IL, for Carole Bialczak, Thomas Murphy, Luis Gutierrez, Patrick Huels and James Laski in Nos. 97-2792 and 97-2793.

Before POSNER, Chief Judge, and RIPPLE and KANNE, Circuit Judges.

POSNER, Chief Judge.

After the 1990 decennial census, the City of Chicago was required by Illinois law to redistrict its 50 aldermanic wards in order to adjust to population shifts since the last census. The City Council was unable to agree on a new ward map, so alternative maps were submitted to the electorate in a referendum held in 1992. The winning map was promptly challenged in separate suits by representatives of black and Latino (Hispanic) voters. The district judge dismissed the blacks' suit on the pleadings shortly after it was filed. We reversed, Barnett v. Daley, 32 F.3d 1196 (7th Cir.1994), and the case was later tried along with the Latinos' case, which we had suggested be consolidated with it. The trial took 48 days, and it was almost a year before the district judge rendered his decision, upholding the City's ward map. 969 F.Supp. 1359 (N.D.Ill.1997). Both sets of plaintiffs have appealed. The only issue they raise is whether the City's map violates section 2 of the Voting Rights Act, which provides relief to minority groups, such as blacks and Latinos, that "have less opportunity than other members of the electorate ... to elect representatives of their choice." 42 U.S.C. § 1973(b). The first aldermanic elections based on the new map were held in 1995, and the next aldermanic elections will be held next year.

If a districting plan drew district lines in such a way that one group, even though it had a substantial fraction of the total electorate (say 49 percent), was a minority in every district, and if in addition the majority group adamantly refused to vote for any candidate that belonged to or was supported by the minority group--which in turn wanted to be represented only by one of its members--then the members of the minority would have no "opportunity ... to elect representatives of their choice" even though they constituted almost half the electorate. From such a diabolical plan the inference of intentional discrimination would be overwhelming, and so the plan would violate the equal protection clause of the Fourteenth Amendment as well as section 2 of the Voting Rights Act. The Act, however, unlike the constitutional provision, does not require any showing of intentional discrimination, Milwaukee Branch of NAACP v. Thompson, 116 F.3d 1194, 1199 (7th Cir.1997); Barnett v. Daley, supra, 32 F.3d at 1201; NAACP v. City of Niagara Falls, 65 F.3d 1002, 1006 (2d Cir.1995), and by the same token is not limited to impairments of minority voting power so egregious as to compel an inference of such discrimination.

The plaintiffs have abandoned their effort to prove intentional discrimination, and with that out of the picture the question becomes, much as in a case of disparate impact under Title VII of the Civil Rights Act of 1964, whether the challenged districting plan impairs the voting power of minorities more than it has to. That depends on the alternatives. Sometimes there won't be any nondiscriminatory alternative. Imagine a minority group that accounted for less than 1 percent of Chicago's population and was scattered evenly throughout the City. Unless more populous segments of the community were allied with or otherwise supportive of this minority, it would be helpless to elect representatives of its choice to the City Council. Yet there would be no violation of the Voting Rights Act, because it would be infeasible to devise a plan that was more favorable to this minority group. Expanding the Council to

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1,000 members, or to 100 and shifting to at-large elections for alderman, perhaps combined with a system of proportional representation, might do the trick. But it would be the kind of radical remedy that the Act does not require, since the protection of minorities is not the sole factor to be considered in a decision...

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